§ I. Who Can Donate

881. • Anyone can donate who is incapable of it neither in fact nor in law.

But he is incapable in fact who, when the donation is perfected, either is not sound in mind, or does not act with sufficient liberty.

Incapable in law are:

1. For donation inter vivos: a) minors not emancipated according to what was said in n. 837, unless it is a question of things of small moment. b) Wives according to what was said in n. 840. c) Spouses between themselves, unless either the donation is moderate, or certain solemnities are employed, and the rights of creditors are saved. Thus a husband can hand over his goods to some persons for the wife's use, for an equitable cause. In what manner a wife can donate to her husband was said in n. 840, 1°. d) Interdicted persons according to what was said in n. 843. e) He who is not solvent, if he donates in fraud of creditors.

2. For donations in prospect of death, all and only those who cannot make testament, concerning whom below, where Testaments are treated, n. 911.

882. Questions. - Query 1° Do the aforesaid dispositions of our law obligate in conscience?

Resp. Excepting the case of one donating in fraud of creditors, negatively, at least in practice and gravely, whenever those incapable by donating do not notably injure anyone and unjustly damage him. Yet Moralists rightly warn that wives donating without the consent of their husbands regularly furnish grave scandal to their husbands. Whence a confessor must most carefully beware lest he indulge too much wives who are liberal beyond measure, but rather should exhort them that, as much as can be done with justice, charity, and the good and honor of the family saved, they accommodate themselves to the will of their husbands.

Query 2° Does civil law concerning donations also touch FOR THE INTERNAL FORUM donations TO PIOUS CAUSES?

Resp. A donation to pious causes is spiritual matter and therefore subject to the jurisdiction of the Church; hence in practice the following rule holds: In pious dispositions for the internal forum Canon Law is to be observed, in which regularly in this matter account is had only of natural and divine right, as La Croix notes.¹

Yet here in particular it is necessary to note: from the Council of Trent,² Novices in a Religious Order are incapable of donating their goods by donation inter vivos, whether to the monastery or to others, unless with the permission of the Bishop or his Vicar within the 2 months immediately before solemn profession; indeed even their donations made within that time with due permission are not otherwise understood to obtain their effect unless profession follows. - The Holy Synod wisely established this, lest perhaps a Novice, once despoiled of his goods, emit profession unwillingly.

Say the same, according to the opinion which is called truer and common by St. Alphonsus,³ concerning those who, in bad faith, receive from one who is not solvent, with damage to creditors; and these are bound to compensation of the damage which thence comes to the creditors. For just as the one donating in the case injures justice by rendering himself unequal to paying his debts, so also the donee injures it, who positively cooperates in the unjust action of the donor with the prejudice of the creditors. For donation does not consist in the will alone of the donor, but also in the will of the receiver, without which the donation cannot be perfected; and therefore, although the donee is not the motive cause, nevertheless in reality he is a truly influent and efficacious cause of the alienation of the thing to the damage of creditors.

But if donations of this kind were performed altogether in good faith, and did not fall under the dispositions of the law concerning cession of goods, then I would not wish to blame one who would retain what had thus been received; since civil law in favor of commerce indulges many things to those acting in good faith.